THE COMMISSIONER OF INCOME TAX vs. M/S KARNATAKA CO-OPERATIVE MILK PRODUCERS

IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 17TH DAY OF JUNE, 2021 BEFORE THE HON’BLE MR. JUSTICE N.K.SUDHINDRARAO R.S.A.No.70/2007

BETWEEN:

MRS. MARY JOYCE POONACHA W/O MR. M.A.POONACHA MAJOR, RESIDING AT No.111, GARDEN HOUSE, PRS LAYOUT, BANASAWADI BANGALORE – 560 047.

...PETITIONER

(BY SRI K.N.PHANINDRA, SENIOR COUNSEL FOR SMT. VAISHALI HEGDE, ADVOCATE)

AND:

AT No.112, RICHMOND TOWERS

No.12, RICHMOND ROAD

BANGALORE – 560 025.

FATHER’S NAME NOT KNOWN

MAJOR, RESIDING AT

No.8, CARLESTON

BANGALORE – 560 005.

REPRESENTED BY CHIEF SECRETARY R

VIDHANA SOUDHA

BANGALORE.

...RESPONDENTS

(BY SRI K.GANESH NAYAK, ADVOCATE FOR R1 SRI M RAVIPRAKASH, ADVOCATE FOR R2 SMT T H SAVITHA, HCGP FOR R3)

THIS RSA IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGMENT AND DECREE DATED:7.10.2006 PASSED IN R.A.No.33/2002 ON THE FILE OF THE DISTRICT, AND SESSIONS JUDGE AND PRESIDING OFFICER, FTC-II, BANGALORE RURAL DISTRICT, BANGALORE, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DT 26.8.2002 PASSED IN O.S.No.122/92 ON THE FILE OF THE II ADDL.CIVIL JUDGE (SR.DN), BANGALORE RURAL DISTRICT, BANGALORE.

THIS RSA COMING ON FOR FURTHER DICTATION THIS DAY, THROUGH VIDEO CONFERENCING THE COURT DELIVERED THE FOLLOWING:

JUDGMENT

This regular second appeal under Section 100 CPC is directed against the common judgment and decree dated 7-10-2006 passed in R.A.Nos.33 and 35 of 2002 by the District and Sessions Judge and Presiding Officer, Fast Track Court –II, Bangalore Rural District, Bangalore, wherein appeal filed by the plaintiff -K.T. Plantations Private Limited in RA

No.33/2002 came to be allowed and the appeal filed by 3rd defendant-R. Devdas, in R.A.No.35/2002 is dismissed and the impugned judgment and decree dated 26-08-2002 passed in O.S.No.122/1992 by the II Additional Civil Judge (Sr.Dn), Bangalore Rural District, Bangalore, came to be set aside and consequently, the suit of the plaintiff came to be decreed as prayed for declaring that the sale deed dated 16-2-1992 executed by 1st defendant –Mme Devika Rani Roerich in favour of plaintiff-Company is valid and binding and restraining the defendants from transferring the suit schedule property to any Trust, Society or any other person in any manner or from creating any charge, lien, encumbrance etc., on the suit schedule property and permanently restrained the defendants from interfering with the plaintiff’s peaceful possession and enjoyment of the suit property.

business of plantation and allied activities which is represented by its Managing Director Mr.K.T.Bhagath. 1st defendant – MMe Devika Rani Roerich and her husband Dr.Svetoslav Roerich both being the absolute owners of the property known as “Tataguni Estate” situate at Bangalore-Kanakapura Main Road, wherein the land was being cultivated. 1st defendant – MMe Devika Rani Roerich and her husband were residing in the house which is situated in the estate which was called as “Tataguni Estate”. However, in view of their old age and ill-health and in order to get better medical facilities, they started living permanently since last three years at Hotel Ashok. 2nd defendant is the Private Secretary of 1st defendant’s husband Dr.Svetoslav Roerich and looking after his entire affairs.

entered between the plaintiff-Company and 1st defendant on 21.09.1991 and sale consideration was also revised to Rs.89,50,000/-. Subsequently, 1st defendant obtained income tax clearance from Income Tax Authorities for the sale of plaint schedule land and the sale consideration fixed for the entire property measuring 223 acres 30 guntas was Rs.89,50,000/-. Thereafter, plaintiff-Company paid the balance sale consideration of Rs.79,50,000/- through cheques in favour of 1st defendant on various dates. After receipt of sale consideration on various dates, 1st defendant executed a sale deed on 16.02.1992 in favour of the plaintiff-Company conveying the schedule property in the presence of the witnesses. The possession of the schedule property was also delivered to the plaintiff- Company on that day and since then plaintiff is in possession of the same. However, plaintiff-Company permitted 1st defendant and her husband to keep their

belongings in the studio house situated therein temporarily till an alternate arrangement is made.

When this was brought to the notice of 1st defendant, she agreed to come to the Sub-Registrar’s Office at Kengeri on 7-3-1992 for executing and completing the registration formalities of the schedule property. Thereafter, the Managing Director of the plaintiff- Company went to the Office of the Sub-Registrar on 07.03.1992 and presented the sale deed for registration. The registration fee was also paid by the plaintiff as required. But, 1st defendant did not turn up to the office of the Sub-Registrar at the appointed time and therefore, the Managing Director of plaintiff- Company contacted 1st defendant, he was informed that 1st defendant is not keeping good health and he was requested to find out if the Sub-Registrar would go over to the residence of 1st defendant to complete the registration formalities. In this connection, a request letter was given by 1st defendant to the

jurisdictional Sub-Registrar’s Office requesting private attendance to complete the registration formalities.

returned without executing the Commission warrant regarding registration of sale deed.

interest of 1st defendant and to cause unlawful loss to plaintiff-Company. 2nd defendant gave a paper publication in Indian Express dated 17.03.1992 stating that 1st defendant and her husband have authorized her to deal with their properties. But 1st defendant gave separate publication on 18.3.1992 stating that she has not authorized 2nd defendant to represent her and to deal with her property.

this connection, 2nd defendant and her persons have organized a function on 15.6.1992 and inaugurated a Trust in the name and style “International Roerich Memorial Trust”. It is also contended that 2nd defendant and other interested persons have been prevailing upon 1st defendant and her husband to transfer the property either in the name of Trust or another name in order to make gain.

the order of 1st appellate court in R.A.No.3/1997, Government of Karnataka was impleaded as 4th defendant.

R.Devdas and his son Jude Devdas. These two persons used to frequently visit 1st defendant’s house and developed friendship with her and gradually developed interest in looking after the welfare of 1st defendant and catering to her needs. During that time, R. Devdas and Jude Devdas used to call upon 1st defendant to sign some papers stating that the papers are necessary to look after Tataguni estate properly and also to look after the paintings in the bungalow. 1st defendant was aged 84 years and was not keeping good health during May 1991 to March 1992 and she regained good health in March 1992 and she came to know that the manner in which R. Devdas and his son Jude Devdas have virtually duped her and obtained her signatures on papers by misrepresentation and fraud and therefore, she issued a public notice in the news paper. She had not received a single rupee as consideration under the agreement of sale or sale

deed. She does not know how the cheques were credited or encashed.

and she has not issued any such public notice on 18.3.1992.

sale pertaining to plaint schedule properties are vitiated by fraud?

Documentary evidence on behalf of plaintiff: Ex.P.1 : Sale deed Ex.P.2 : Memo Ex.P.3 : Tax clearance application Ex.P.4 : Order copy o the Income tax authority Ex.P.5 : No Objection certificate Exs.P.6 & 7: Memo of the District Registrar Office Ex.P.8 : File of District Registrar Ex.P.9 : Cheque Ex.P.10 : Account extract

Exs.P.11 to 15: Cheques Ex.P.16 : Account extract Ex.P.18 : Supplementary agreement Ex.P.19 : Certified copy of the order of the Sub-Registrar Ex.P.20 : Copy of the charge sheet Exs.P.21 & 22: News paper cutting (publication) Ex.P.23 : Invitation Card! Ex.P.24 : Cheque for Rs.5!,00,000/- Ex.P.25 : Memorandum of articles of Association Ex.P.26 : Notification copy of the board meeting Ex.P.27 : Page No.32 of board meeting Ex.P.28 : Page No.25 of board meeting Ex.P.29 : Page No.26 to 29 of board meeting Ex.P.30 : Page Nos.72 to 74 of board meeting Ex.P.31 : Page Nos.46 to 97 of board meeting Ex.P.32 : Page Nos.112 to 116 of board meeting Ex.P.33 : Page Nos.98 to 100 of board meeting Ex.P.34 : Page No.32 of ledger book Ex.P.35 : Page No.33 of Ledger book Ex.P.36 : Page Nos.62 and 63 of Ledger book Ex.P.37 : Page Nos.60 and 61 of Ledger book Ex.P.38 : Ledger for the year 1992-93 Ex.P.39 : Certified copy of plaint in O.S.No.2073/1995 Ex.P.40 : Account extract Ex.P.41 : Copy of FIR Ex.P.42 : Letter written to Devdas Ex.P.43 : Letter written to Issar

Oral evidence on behalf of defendants:

D.W.1 : Mrs.Mary Joyce Poonacha

D.W.2 : R.Devdas

Documentary evidence marked on behalf of defendants:

Ex.D.1

: Cheque

Exs.D.2 to D.4 : Account Opening Forms

Exs.D.5 to 19 : Transferred debit chits

Exs.D.20 to 23 : Account Opening Forms

Exs.D.24 & 25 : Account extracts

Exs.D.26 & 27 : Account opening Forms

Exs.D.28 to 31 : Account extracts

Ex.D.32

: Copy of sale deed Ex.P.1

Ex.D.33

: Original sale agreement

Ex.D.34

: Order of High Court in W.P.No.205/92

Ex.D.35

: Order copy of W.P.No.205/92

in Tataguni Estate and later, in the grand Ashoka Hotel. Learned counsel also pointed out that by virtue of denial of the sale agreement and the sale deed by 1st defendant, the question of considering the sale deed for registration does not arise. It was also submitted that the sale deed is brought up under suspicious circumstances by the plaintiff- Company. The agreement if any was not in force and there is no duty to execute the sale deed, as such, the execution of the same is fake and unreliable.

Company is a real estate dealer and is engaged in taking away the property through illegal means and present case is one of the best example.

cross examined. Thereafter, the trial judge dismissed the suit of the plaintiff on 26-8-2002. Against the said judgment and decree, plaintiff filed an appeal in R.A.No.33/2002 and 3rd defendant- R. Devdas preferred an appeal in R.A.No.35/2002. The first appellate court allowed R.A.No.33/2002 and set aside the judgment and decree of the trial court and consequently, the suit of the plaintiff stands decreed as prayed for. The operative portion of the judgment is as under:

“The appeal No.33/2002 is allowed. The impugned judgment and decree are set aside. Consequently, the suit of the plaintiff stands decreed as prayed for. It is declared that the sale deed dated 16-2-1992 executed by 1st defendant Madam Devikarani Roerich in favour of the plaintiff Company is valid and binding on her. The defendants are restrained form transferring the sit schedule property to any Trust, Society or any other person in any manner or from creating any charge, lieu, encumbrance etc., on the suit schedule property. The defendants, their men, agents, servants or any one claiming through or under them are permanently restrained from interfering with the plaintiff’s peaceful possession and enjoyment of suit schedule property.

Appeal No.35/2002 is dismissed.

Keep copy of this judgment in RA No.35/02.”

31.

Learned counsel Mr.K.G.Nayak, for plaintiff/1st respondent herein submits that, it was Mme Devika Rani Roerich who wanted to sell the schedule property and the plaintiff- Company entered into an agreement to purchase the schedule property

for a consideration at the rate of Rs.40,000/- per acre and total extent being 223 acres 05 guntas, popularly known as ‘Tataguni Estate’ wherein MMe Devika Rani Roerich and Mr.Roerich were living and later they shifted to Hotel Ashoka. The said agreement is marked as Ex.P17. Later it was discovered that the extent of land was actually 223 acres 30 guntas and accordingly, supplementary agreement was entered into. Calculating at the rate of Rs.40,000/- per acre, the total amount would be Rs.223.30 x 40,000/- = Rs.89,50,000/- and an advance amount of Rs.10,00,000/- was paid and however, at the time of execution of Ex.P1 the full amount of Rs.79,50,000/- was made. Thus the plaintiff-Company in tandum has complied with all the formalities and procedure and the promises. It was 1st defendant who did not stick to her promise and finally made the plaintiff to run from pillar to post.

Registrar, Gandhinagar also had accompanied the Managing Director of the plaintiff company.

other hand, he was prosecuting the suit before the trial court.

No.3094/1995. The order passed by the Apex court is as under:

“Leave granted.

We have heard the counsel on either side at length.

This appeal by special leave arises from the order of

the Division Bench of the High Court of Karnataka,

dated 22.6.1994 made in W.A.No. 2667/ 93.

The facts relevant for the disposal of this appeal are

as under:

One Devika Rani had allegedly executed an agreement on July 30, 1991 and supplemental agreement on September 2 1, 1991 respectively to sell 223 acres of land in Tataguni Estates on the outskirts of Bangalore City. It had been claimed that in furtherance thereof she had executed a sale deed said to be on 16.2.1992 but the same was not registered. Respondent No. 1 filed O.S.No. 122/92 in the court of City Civil Judge, Bangalore Rural for declaration that the said sale deed dt. 16.2.92 executed by Mrs. Devika Rani Roerich in its favour was valid and binding on her and also for mandatory injunction restraining her from creating any encumbrances on the said property or from transferring it and for a further perpetual injunction restraining her from interfering with his alleged possession and enjoyment of that property. Devika Rani filed her written statement on 2.7.1992 whereby she denied the execution of the sale deed and the agreements to sell in favour of the respondent No. 1 and of the passing of consideration under them. Thus, according to the defendant, she did not execute any agreement to sell or any sale deed in favour of the respondent No.1 in respect of the suit schedule property and

the same is bogus and vitiated by fraud and misrepresentation.

Respondent No.1 has been consistently making efforts and attempts to grab the property of the defendant and their earlier suit No. O.S.3692/92 which was filed in the City Civil Court at Bangalore was withdrawn by them. The present suit had been filed with an additional relief of declaration also. Evidently, the plaintiff was filing speculative and false suits so as to somehow coerce the defendant to sell away her estate to the plaintiff. This defendant had not executed any agreement or supplementary agreement to sell nor had made any application to the Income Tax Authorities nor had she executed an absolute sale deed. The entire agreement of sale and sale deed arc nothing but sham and bogus and a collusive job of K.T. Bhagath, the Managing Director of the K.T.Plantations and R.Devdas and Jude Devdas. The agreements to sell and deed of sale were vitiated by fraud and were unenforceable in die eye of law. This defendant reiterated that she has not handed over possession of the suit schedule property to respondent No. 1 and that she was in possession and enjoyment of the suit schedule property as its absolute owner thereof. In support thereof, she has raised several contentions which are not relevant for the disposal of this appeal.

The Sub-Registrar, Kengeri in his endorsement dated 30.7.92 refused to register the document, the sale-deed. This situation led respondent No. 1 to file an appeal before the District Registrar within thirty days on 28.8.92. When the Registrar was proceeding to hear the appeal to register the document, the appellant sought for stay of further proceedings in view of the pendency of the suit but he declined to stay the proceedings. Now it is an

admitted fact that Devika Rani died subsequently. The appellant filed W.P.No. 22677/93 in the High Court and the learned Single Judge by his order dated 23.9.93 dismissed the same. On appeal, as stated earlier, the Division Bench dismissed the Writ Appeal. Thus, this appeal by special leave.

The only question that arises in this appeal is whether the Dist. Registrar was right in proceeding with the hearing of the appeal and whether the High Court was right in declining to stay the proceedings before the District Registrar. On a consideration of the facts and circum- stances of the case, we are of the view that both the District Registrar committed a palpable error of law in proceeding with the matter and the High Court was unjustified in refusing to interfere.

Section 34(3) of the Registration Act, 1908, (for short, 'the Act'), empowers the Registrar when a document is presented for registration to enquire and satisfy himself on certain matters. Section 34(3) reads:

"34(3) The registering officer shall thereupon-

(a) enquire whether or not such document was executed by the persons by whom it purports to have been executed;

(b)satisfy himself as to the identity of the persons appearing before him and alleging that they have executed the document; and

(c)in the case of any person appearing as a

representative, assign or satisfy himself of the

right of such so to appear." (emphasis supplied)

The Sub-Registrar is required to satisfy himself with the due execution of the document/deed said to have been executed by Devika Rani since she herself was not present at the time of registration of the document. Consequently, the appeal came to be filed. It was within his power that before proceeding to register the alleged conveyance said to have been executed by Devika Rani to satisfy himself whether or not she executed it and whether or not the person presented on her behalf was authorised to have it registered on her be- half He was also empowered to summon her to appear before him before proceeding to register the document. Under the circumstances he refused to register the document. Under ss.72 and 73, of the Act, undoubtedly, the existence of the, power of the, Register to proceed- with the peal is not disputed and cannot be disputed. But the question is of the proprietary and justness of the exercise of the power. Whether he was right in his exercise of discretion to proceed with the hearing of the appeal. As stated earlier, when the executant has denied the execution of the alleged sale deed and passing of the consideration as on 2.7.92 and the dispute when was pending trial in the civil suit filed by the alleged vendee itself The appropriate course should have been that the Registrar should have stayed his hands and directed the plaintiff to obtain appropriate direction from the Civil Court or a decree. When the, appellant approached the High Court, the High Court also should have directed the Civil Judge to dispose of the suit. Then the Registrar should have heard the appeal. Instead, the High Court dismissed the Writ Petition and Writ Appeal. Therefore, the orders of the High Court arc set aside. There shall be a direction to the District Registrar not to proceed further with the hearing of the matter till the civil suit is disposed of The trial court is directed to dispose of the suit as expeditiously as possible within a period of one year

from today. Depending upon the result in the suit, the District Registrar shall take further action.

It is true as rightly contended by Shri R.F.Nariman, the learned senior counsel, that by operation of the prohibition contained in s.49 of the Act the unregistered impugned document effecting the immovable property cannot be looked into. Since the suit is not against an order under sec.77 of the Act, lifting of the bar provided by sec. 78(3) will not come to the aid of the plaintiff. It indicates that when execution of sale deed is in controversy and is subject matter of a suit, s.77(3) lifts the bar of s.49 and enables the court to look into the document for adjudicating the controversy. In these circumstances we direct the trial court to look into the document only for the limited purpose of finding out whether Devika Rani had executed the impugned sale deed alleged to have been executed by her and not for any other purpose. Status quo as on date of suit shall continue till the suit is disposed of.

The appeal is accordingly allowed but, in the

circumstances, without costs.”

stopped. It was thereafter, the prosecution of original suit in OS No.122/1992 continued and it was ended in an dismissal for default in the beginning and thereafter appeal was preferred against the said order of dismissal and it came to be allowed and the matter was remanded. In the second phase of proceedings before the trial court, the suit was dismissed, against which, it was the turn of the plaintiff to approach the appellate Court in R.A.No.33/2006 and that came to be allowed. Thus, the present appeal under Section 100 CPC was preferred against the divergent view of the courts below.

it not negate the Section 17 of the Registration Act? 2. Can there be a declaration that the sale deed with respect to agricultural property in favour of a company is valid in the light of bar contained in Section 79(b) of Land Reforms Act?

(i) Whether non registration of document after non registration of an instrument of conveyance after being executed become a nullity if it is not registered?

(ii) Whether the courts are having power to receive the document, examine the validity and genuineness of its execution and thereafter consider

the non registration, regard being had to the fact that execution was completed? (iii) Whether 1st defendant admitted the execution of the sale agreements -Ex.P17 and P18 or the suit document Ex.P1 at any given point of time and if the admission stated above was made what would be the legal effect of the same?

document that was produced before the Sub-Registrar Kengeri and the District Registrar. He further submits that the very plaintiff has not mentioned the circumstances which show that 1st defendant had intention to sell the schedule property. He also submit about the value being meager.

advance amount of Rs.10.00 lakhs was given in the form of cheque and further the balance consideration being given to her gets doubly confirmed by the evidence of the Bank managers who have been examined on behalf of plaintiff and it was also submitted that 1st defendant was a celebrity at one point of time and she retained her upper hand on all the stages of the transaction.

filed under order 9 Rule 9 or appeal was preferred against the said judgment.

wherein the plaintiff Company entered into an agreement to purchase the suit schedule property of 223 acres 05 guntas of land from Mme Devika Rani Roerich at the rate of Rs.40,000/- per acre and the advance amount paid on that date was Rs.10.00 lakhs under the agreement.

entire balance amount was paid through cheques. The details of the cheques are as under:

Rs.10,00,000/- at the time of agreement dated 23.8.1991 by cheque No.186055 dated 23.8.1991.

Sl. No. Amount Ch. Nos. Dated 1 Rs.25,00,000/- 995706 12.2.1992 2 Rs.10,00,000/- 995707 14.2.1992 3 Rs.15,00,000/- 995708 17.2.1992 4 Rs.10,00,000/- 995709 19.2.1992 5 Rs.14,50,000/- 995710 19.2.1992 6 Rs.5,00,000/- 430225 19.2.1992 Tot al Rs.79,50,000/- At the time of Ex.P1.

+ Rs.10,00,000/- Advance

Rs.89,50,000/-

All drawn on Karnataka Bank Limited, Koramangala Branch, Bangalore and

(f) Rs.5,00,000/- (Rupees five Lakhs only) by cheque No.430225 dated 19.02.1992 drawn on state Bank of Mysore, Cooke Town Branch, Bangalore; all subject to realization.”

bank have deposed regarding honouring of the cheques and transferring the amount to the account of Mme Devikarani Roerich. Thus, these two witnesses speak regarding honouring of the cheques.

property is the registration. Insofar as presentation of document is concerned, it can either be presented by seller or purchaser and the next aspect is, admission of execution wherein Sub-Registrar would ask the executant of the contents of the sale deed and when the vendor replies confirming the sale and also receiving of consideration, the vendor will be asked to sign at the column mentioned for “execution admitted” so that the seller has admitted execution. Next one is, the office formalities, where the document in the post registration stage would describe the registered sale deed, Book Number, Volume, Page Numbers etc. However, now, the same is effected according to the latest technology.

of the Indian Registration Act,

indicate the formalities.

appointed on behalf of the Registration authority to preside over the matter for registration of sale deed at Hotel Ashoka where 1st defendant was stationed. It is also the case of the plaintiff that when they went to Hotel Ashoka, 2nd defendant never allowed the plaintiff to have access with Mme Devika Rani Roerich and by virtue of not meeting Mme Devika Rani Roerich, the Commissioner returned to Sub-Registrar’s office. It was at that moment, Sub-Registrar was requested by the plaintiff for compulsory registration of the sale deed.

that time, compulsory registration would be effected. In this case, as stated above, first, Sub-Registrar was requested to issue a commission to go to Hotel Ashoka where 1st defendant was stationed on her own for the health reasons as claimed by herself and considering her refusal and the circumstances, the Sub-Registrar refused to register the sale deed. It was after that appeal was preferred by the plaintiff. The sale deed Ex.P-1 was stated to be in the custody of the registration authority when the plaintiff applied for compulsory registration on 28.08.1992. It is on 30-7-1992 appeal was presented before the District Registrar and this has led for the further proceedings. During the pendency of the same, 2nd defendant filed application for stay and the District Registrar declined to stay the proceedings against which 2nd defendant/appellant filed a writ petition before this Court in W.P.No.22677/1994 and it came to be

dismissed on 23-09-1993. Against which, writ appeal was preferred in W.A.No.2667/1994 which came to be dismissed on 22-6-1994. It was against the dismissal of the writ appeal, 2nd defendant approached the Hon’ble Apex Court in Special Leave Petition No.20022/94 and thereafter, it was treated as Civil Appeal No.3094/1995 which came to be disposed of on 20-01-1995 directing the trial court to dispose of the suit expeditiously.

“Leave granted.

We have heard the counsel on either side at

length. This appeal by special leave arises

from the order of the Division Bench of

the High Court of Karnataka, dated 22.6.1994

made in W.A.No. 2667/ 93.

The facts relevant for the disposal of this appeal

are as under:

One Devika Rani had allegedly executed an agreement on July 30, 1991 and supplemental agreement on September 2 1, 1991 respectively to sell 223 acres of land in Tataguni Estates on the outskirts of Bangalore City. It had been claimed that in furtherance thereof she had executed a sale deed said to be on 16.2.1992 but the same was not registered. Respondent No. 1 filed O.S.No. 122/92 in the court of City Civil Judge, Bangalore Rural for declaration that the said sale deed dt. 16.2.92 executed by Mrs. Devika Rani Roerich in its favour was valid and binding on her and also for mandatory injunction restraining her from creating any encumbrances on the said property or from transferring it and for a further perpetual injunction restraining her from interfering with his alleged possession and enjoyment of that property. Devika Rani filed her written statement on 2.7.1992 whereby she denied the execution of the sale deed and the agreements to sell in favour of the respondent No. 1 and of the passing of consideration under them. Thus, according to the defendant, she did not execute any agreement to sell or any sale deed in favour of the respondent No.1 in respect of the suit schedule property and the same is bogus and vitiated by fraud and misrepresentation.

Respondent No.1 has been consistently making efforts and attempts to grab the property of the defendant and their earlier suit No. O.S.3692/92 which was filed in the City Civil Court at Bangalore was withdrawn by them. The present suit had been filed with an additional relief of declaration also. Evidently, the plaintiff was filing speculative and false

suits so as to somehow coerce the defendant to sell away her estate to the plaintiff. This defendant had not executed any agreement or supplementary agreement to sell nor had made any application to the Income Tax Authorities nor had she executed an absolute sale deed. The entire agreement of sale and sale deed arc nothing but sham and bogus and a collusive job of K.T. Bhagath, the Managing Director of the K.T.Plantations and R.Devdas and Jude Devdas. The agreements to sell and deed of sale were vitiated by fraud and were unenforceable in die eye of law. This defendant reiterated that she has not handed over possession of the suit schedule property to respondent No. 1 and that she was in possession and enjoyment of the suit schedule property as its absolute owner thereof. In support thereof, she has raised several contentions which are not relevant for the disposal of this appeal.

xxx xxx xxx xxx

The only question that arises in this appeal is whether the Dist. Registrar was right in proceeding with the hearing of the appeal and whether the High Court was right in declining to stay the proceedings before the District Registrar. On a consideration of the facts and circum- stances of the case, we are of the view that both the District Registrar committed a palpable error of law in proceeding with the matter and the High Court was unjus- tified in refusing to interfere.

xxx xxx xxx xxx

It is true as rightly contended by Shri R.F.Nariman, the learned senior counsel, that by operation of the prohibition contained in s.49 of the Act the unregistered impugned document effecting the immovable property cannot be looked into. Since the suit is not against an order under sec.77 of the Act, lifting of the bar provided by sec. 78(3) will not come to the aid of the plaintiff. It indicates that when execution of sale deed is in controversy and is subject matter of a suit, s.77(3) lifts the bar of s.49 and enables the court to look into the document for adjudicating the controversy. In these circumstances we direct the trial court to look into the document only for the limited purpose of finding out whether Devika Rani had executed the impugned sale deed alleged to have been executed by her and not for any other purpose. Status quo as on date of suit shall continue till the suit is disposed of.

The appeal is accordingly allowed but, in the

circumstances, without costs.”

“Declare that the sale deed dated 16.02.92 executed by the defendant MMe.Devika Rani Roerich in favour of the plaintiff company is valid and binding on her.”

Execution means the accomplishment of a thing, the completion of an act or instrument.

Hence, the plaint meaning of the word “Execution” is the process of completion of accomplishment of an act. Here, we have to see the meaning of the term ‘execution” with regard to the documents in legal sense.

A reading of Sestina 68 of Evidence Act will show that “Attestation” and ’Execution” are two different acts one following the other. There can be no valid execution of a document which, under the law, is required to be attested without the proof of its due attestation and if due attestation is not proved, the fat of execution is of no avail.”

“Execution of a deed or other instrument. Thus when the terms are applied to a written instrument they include the performance of all acts which may be necessary to render it complete as a deed or an instrument importing the intended obligation, of every act required to give the instrument validity, or to carry it into effect or to give the instrument validity, or to carry it into effect or to give it the forms required to tender it valid. (Webster Dict). “The word ‘executes’ applied to a deed, rather to a will” Casement v.Fullon, (5 Moore PC 130, 141, 13). In a technical sense, the words necessarily include in

English law the performance of three acts signing, sealing and delivery and in some instances the acknowledgment of the instrument, but the act of delivery is not always included; and not infrequently the terms are employed to express merely the acts of signing and sealing, or of signing only. The officer of a corporation affixing its seal to a deed is “the party executing the deed”. Execution must mean voluntary execution, the signing of the document of the executant’s free will. Where the signature to an agreement was obtained by duress and intimidation, there is no execution of the documents. [1 CLJ 126:(6 WR Mis 131: 1 BLROC 47: 4 MHCR 425 Dis.)]

“The term execution of document consists in signing a document, written out, read over and understood and does not consist of merely signing a blank paper”. AIR 1916 Pat 206, quoted. Birbal Singh v.Harphool Khan, AIR 1976 All 23 t 24. [Negotiable Instruments Act (26 of 1881), S.118]. Execution of document is not mere signing of it. It is a solemn act of the executant who must own up the recitals in the instrument and there must be clear evidence that the put his signature in a document after knowing fully its contents. Bhutkani Nath v. Kamaleshwari Nath, AIR 1972 Assam and Nagaland 15, 17. [Registration Act (16 of 1908), S.60(2)].”

“The appeal No.33/2002 is allowed. The impugned judgment and decree are set aside. Consequently, the suit of the plaintiff stand decreed as prayed for. It is declared that, the sale deed dated; 16.2.1992 executed by 1st defendant Madam Devikarani Roerich in favour of the plaintiff Company is valid and binding on her. The defendants are restrained from transferring the suit schedule property to any Trust, Society or any other person in any manner or from creating any charge, lien, encumbrance etc., on the suit schedule property. The defendants, their men, agents, servants or any one claiming through or under them are permanently restrained from

interfering wit the plaintiffs peaceful possession and emjoyment of suit schedule property.

Appeal No.35/2002 is dismissed.”

* The prayer sought by the plaintiff in regular appeal No.33/2002 was allowed.

non judicial stamp paper of Rs.11,63,500/-. The sale deed was written, executed and attested. Regard being had to the fact that, plaintiff has to present the same for compulsory registration in the circumstances and what could be understood from the above activities is that, the entire action led for presenting the document for compulsory registration.

Registration Act, and by that time, the civil suit filed on 18-6-1992 was already pending. The proceedings before the court and the Registration authority cannot be bifurcated and placed in two water tight compartments.

Date of filing of appeal before District Registrar in RA No.3/1992: 7-3-1992 Date of filing of the suit is :18-6-1992

executing such document, or their representatives, assigns or agents authorized as aforesaid, appear before the registering officer within the time allowed for presentation under sections 23, 24, 25 and 26: Provided that, if owing to urgent necessity or unavoidable accident all such persons do not so appear, the Registrar, in cases where the delay in appearing does not exceed four months, may direct that on payment of a fine not exceeding ten times the amount of the proper registration fee, in addition to the fine, if any, payable under section 25, the document may be registered.

(2) Appearances under sub-section (1) may be simultaneous or at different times.

(3) The registering officer shall thereupon—

(a) enquire whether or not such document was executed by the persons by whom it purports to have been executed;

(b) satisfy himself as to the identity of the persons appearing before him and alleging that they have executed the document; and

(c) in the case of any person appearing as a representative, assign or agent, satisfy himself of the right of such person so to appear.

(4) Any application for a direction under the proviso to sub-section (1) may be lodged with a Sub-Registrar, who shall forthwith forward it to the Registrar to whom he is subordinate.

(5) Nothing in this section applies to copies of decrees or orders. State Amendments Tamil Nadu: In section 34,—

(1) in sub-section (1), after the expression “persons executing such document”, the expression “and in the case of document for sale of property, the persons claiming under that document” shall be inserted;

(2) in sub-section (3), in clause (b), after the expression “executed the document”, the expression “or they are claiming under the document” shall be inserted.

(3) after section 34, the following section insert:— “34A. Person claiming under document for sale of property also to sign document.—Subject to the provisions of this Act, no document for sale of peoperty shall be registered under this Act, unless the person claiming under the document has also signed such document.”. [Vide Tamil Nadu Act 28 of 2000].

(a) If all the persons executing the document appear personally before the registering officer and are personally known to him, or if he be otherwise satisfied that they are the person they represent themselves to be, and if they all admit the execution of the document, or

(b) if in the case of any person appearing by a representative, assign or agent, such representative, assign or agent admits the execution, or

(c) if the person executing the document is dead, and his representative or assign appears before the registering officer and admits the execution, the registering officer shall register the document as directed in sections 58 to 61 inclusive.

(2) The registering officer may, in order to satisfy himself that the persons appearing before him are the persons they represent themselves to be, or for any other purpose contemplated by this Act, examine any one present in his office.

(3) (a) If any person by whom the document purports to be executed denies its execution, or (b) if any such person appears to the registering officer to be a minor, an idiot or a lunatic, or

(c) if any person by whom the document purports to be executed is dead, and his representative or assign denies its execution, the registering officer shall refuse to register the document as to the person so denying, appearing or dead: Provided that, where such officer is a Registrar, he shall follow the procedure prescribed in Part XII: 50 [Provided further that the 51 [State Government] may, by notification in the 52 [Official Gazette], declare that any Sub-Registrar named in the notification shall, in respect of documents the execution of which is denied, be deemed to be

a Registrar for the purposes of this sub-section and of Part XII.]

the contentions of the defendants. The material before this court is: “The proceeding that was in force before the Sub Registrar and District Registrar were for compulsory registration and the original suit to enforce the right of the plaintiff over the schedule property with the prayer as stated above.”

“It is true as rightly contended by Shri R.F.Nariman, the learned senior counsel, that by operation of the prohibition contained in s.49 of the Act the unregistered impugned document effecting the immovable property cannot be looked into. Since the suit is not against an order under sec.77 of the Act, lifting of the bar provided by sec. 78(3) will not come to the aid of the plaintiff. It indicates that when execution of sale deed is in controversy and is subject matter of a suit, s.77(3) lifts the bar of s.49 and enables the court to look into the document for adjudicating the controversy. In these circumstances we direct the trial court to look into the document only for the limited purpose of finding out whether

Devika Rani had executed the impugned sale deed alleged to have been executed by her and not for any other purpose. Status quo as on date of suit shall continue till the suit is disposed of.

The appeal is accordingly allowed but, in the circumstances, without costs.”

accomplishment of the purpose and in the context, it is completing the formality of the sale deed, as the execution is the penultimate stage and the registration is the final stage. Regard being had to the fact that it invariably suggests that direction of the Hon’ble Apex Court to the trial court that it has to find out whether it is executed and thereafter if it comes to a decision as to whether it is executed or other wise, the matter has to be resumed by the registration authorities.

Sale how made.—Such transfer, in the case of tangible immoveable property of the value of one hundred rupees and upwards, or in the case of a reversion or other intangible thing, can be made only by a registered instrument. 1In the case of tangible immoveable property of a value less than one hundred rupees, such transfer may be made either by a registered instrument or by delivery of the property. Delivery of tangible immoveable property takes place when the seller places the buyer, or such person as he directs, in possession of the property.

Contract for sale.—A contract for the sale of immoveable property is a contract that a sale of such property shall take place on terms settled between the parties. It does not, of itself, create any interest in or charge on such property.

30-07-2002 marked as Ex.P17 and dated 21-09-1991 marked as Ex.P18, as it is stated that the total extent of schedule property is 223 acres 30 guntas, but 30 guntas was not mentioned in the first agreement, Ex.P17. The total sale consideration is Rs.89,50,000/- at the rate of Rs.40,000/- per acre. The plaintiff claims that the total consideration was paid to the 1st defendant through cheques.

Sl. No. Amount Ch. Nos. Dated 1 Rs.25,00,000/- 995706 12.2.1992 2 Rs.10,00,000/- 995707 14.2.1992 3 Rs.15,00,000/- 995708 17.2.1992 4 Rs.10,00,000/- 995709 19.2.1992 5 Rs.14,50,000/- 995710 19.2.1992 6 Rs.5,00,000/- 430225 19.2.1992 Total Rs.79,50,000/- At the time of Ex.P1.

+ Rs.10,00,000/- Advance

Rs.89,50,000/-

All drawn on Karnataka Bank Limited, Koramangala Branch, Bangalore and

(f) Rs.5,00,000/- (Rupees five Lakhs only) by cheque No.430225 dated 19.02.1992 drawn on state Bank of Mysore, Cooke Town Branch, Bangalore; all subject to realization.”

incorporated during the year 1988 under the Companies Act, 1952. He has reiterated the averments made in the plaint. It means to say that the schedule property earlier belonged to 1st defendant and her husband. The entire estate was in two phases. As both 1st defendant and her husband were aged 80 years and both of them were in advanced stage, they were maintaining the schedule property through servants. He tells about the intention of 1st defendant to sell the schedule property. The plaintiff company had entered into an agreement to purchase 233 acres 05 guntas from Dr.Roerich, husband of 1st defendant. The sale agreement was entered into on 30-10-1990 and total consideration was Rs.93,63,000/- and paid Rs.83,62,000/- on the date of agreement and thereafter registered sale deed was executed on 23-3-2001. As there were no documents in respect of 92.17 guntas of land sale

deed was not executed and sale deed was executed in respect of 141 acres 25 guntas of land. Hence, plaintiff has filed a separate suit in O.S.No.2073/1995 (Ex.P39) claiming refund of sale consideration amount in respect of 92 acres 17 guntas of undocumented land and the said suit was dismissed as the Government was not made as a party to the said suit.

mother was bedridden and not in a position to come to court to give evidence.

deed was already executed, signed on each page by 1st defendant in the house of 3rd defendant. Thus, the direct execution of the sale deed Ex.P1 is spoken by PW1 and PW6 but the legal formality of registration was not effected.

“(a) for a declaration that the Sale deed dated:16.2.1992 purported to have been

executed by the first plaintiff and under which the first defendant is claiming rights in respect of the suit schedule properties is null and void and vitiated by fraud and the said documents is invalid and not binding on the first plaintiff.

(b) for a permanent injunction restraining defendant No.1 or any person claiming through or under them from interfering with plaintiffs peaceful possession and enjoyment of the suit schedule property.

(c) for costs of this suit and to grant such other relief or reliefs as this Hon’ble Court may deem fit to grant in the circumstances of the case.”

further either making application under order 9 rule 9 CPC or by preferring an appeal and in this case, she is contesting the suit as 1st defendant. Contentions in the written statement of 1st defendant is that she has not executed the sale agreement or sale deeds and the documents are manipulated. At the same time, it is also contended by her that, her signatures were obtained on blank papers and that were misused. Thus, the plaintiff is expected to prove the execution of the sale deed. In this regard, PW1 in his evidence speaks about Exs.P17 and P18 dated 30-07-1991 and 21-9-1991 respectively and also sale deed Ex.P1.

cheques and PWs 3 to 5 are the bank officials who have given their oral evidence in this connection. The trial court dismissed the suit of the plaintiff mainly on the ground that, it is not demonstrated in the evidence and assigned the reasons in the judgment. The portion of paragraph No.35 of the judgment of the trial court is as under: “Issue No.11 and 12: The defendants have taken contention that the plaintiff without asking the relief of specific performance of contract the suit one filed for declaration is not maintainable and it is hit by 34 of the Specific Relief Act. On going through the plaint averments it is clear that the plaintiff has filed this suit against the defendants for declaration to declare the sale deed executed by the first defendant is valid and binding etc. It appears the plaintiff filed the suit on the presumption that the execution of the document is admitted and the registration is refused. Therefore the plaintiff is seeking declaratory relief of title in respect of the sale deed is concerned. Since the plaintiff document is not a registered and that document is compulsory registerable U/s 49 of the registration Act. The document in question is not a registered. The defendant has taken contention with regard to maintainability of the suit. The plaintiff ought to have prayed for specific performance of contract with declaratory relief of possession. Mere the defendant No.1 admitting her signature on the sale deed the

plaintiff will not entitled the decree as sought for and the sale deed is not registered in accordance with Sec.49 of the Registration Act. Proof of signing the document does not amount to execution of the document in the eye of law. The first defendant had denied the execution of the document during her life time. So the declaratory suit filed by the plaintiff is not maintainable and it is hit by Sec.34 of the Specific Relief Act. On the basis of unregistered document the plaintiff will not get any title over the suit schedule property and valid title is not conveyed in favour of the plaintiff also. Hence the suit is barred U/s 34 of the Specific Relief Act. Further suit is not maintainable for not asking the consequential relief. Hence I answer the issues No.11 and 12 in the AFFIRMATIVE.”

court, prayer No.(a) in the plaint assumes significance and the same is as under:

“Declare that the sale deed dated 16-2-1992

executed by the defendant Mme.Devika Rani

Roerich in favour of the plaintiff company is

valid and binding on her.”

execution of sale deed and its registration. Normally, the executed document is presented for registration may be either by the purchaser or in certain occasions by the vendor. It is upon the registration, the process of transfer is completed. When the execution is not admitted the registration is refused or in the enquiry held by the Registrar he finds that sale deed was executed, he proceeds for registration under Section 34 and 35 of the Registration Act. Of course, appeal lies from the order of the Sub-Registrar to the District Registrar under Section 72 of the Registration Act.

before the Sub-Registrar and filing of the suit do not go diagonally opposite to each other, because, the sale deed need not be presented in the presence of the Sub-Registrar. It is registered when the execution is admitted by the executants of the document as it was not admitted, the further proceedings before the Sub registrar and thereafter before the District Registrar. In the meanwhile, the suit was filed before the learned trial judge and the dates are as stated above which presupposes the Sub-Registrar or the District Registrar to get the jurisdiction to exercise their powers only in respect of an executed document. To find out whether the document is executed or otherwise, it is within the exclusive domain of the Civil Courts and in respect of which suit is pending. Invariably, answer to the said question is, on execution, the registration authority would get the jurisdiction over the matter and not until then because

it is not the business of the registration authority to give a finding on execution. It is in this way, the duty of the executives differs or it is excluded from the scope of judicial adjudication.

consideration of the sale is paid and the document is executed.

II. In the case of S. Kaladevi V/s. V.R.Somasundaram and Others - (2010) 5 SCC 401 and the head note of the same reads as under:

“A Registration Act, 1908- Ss.49 proviso and 17 – unregistered sale deed – Admissibility in evidence – Unregistered sale deed tendered not as evidence of completed sale but as proof of oral agreement of sale, held, can be received in evidence by making endorsement that it was received only as evidence of oral agreement of sale under S.49 proviso- Hence, where in suit for specific performance of alleged agreement of sale, plaintiff tendered in her evidence unregistered sale deed, held, trial court ought to have marked the same and proceed with the suit accordingly – Directed accordingly – Admission of unregistered sale deed in evidence in such case, held, not hit by S.3(b), Specific Relief Act, 1963 – Transfer of Property Act, 1882 – Ss. 5, 107 and 123 – Evidence Act, 1872 – S.91 – Specific Relief Act, 1963, Ss.10 and 3(b).”

III. In the case of Mary Joyce Poonacha (Mrs) V/s.K.T Plantations Pvt. Ltd. and Others - 1995 Supp (2) SCC 459 and head note reads as under:

“A Registration Act, 1908- Ss.34(3), 77(3) and 49 – Enquiry to be made by registering officer on presentation of sale deed for registration – Where dispute regarding execution of alleged sale deed pending trial before Civil Court, Registrar should direct the plaintiff to obtain appropriate direction or order from Civil Court instead of proceedings with the matter – Agreement of sale and sale deed in furtherance thereof alleged to have been executed by ‘D’ in favour of respondent – Suit filed in Civil Court by respondent for declaration that the alleged

possession – Written statement filed by ‘D’ denying execution of the agreement and the sale deed – ‘D’ dying subsequently – Alleged sale deed presented for registration – Sub-Registrar refusing to register the sale deed – On appeal, District Registrar proceeding to hear the appeal and refusing the prayer for stay of proceeding in view of pendency of the civil suit – High Court also declining to interfere under Art, 226 – Held, District Registrar erred in proceeding wit the matter and High Court erred in refusing to interfere – Civil Court directed to look into the sale deed for the limited purpose of ascertaining its execution in view of S.77(3).”

IV. In the case of M/s. K.B.Saha & Sons Pvt. Ltd. V/s. M/s. Development consultant Ltd - (2008) 8 SCC 564.

V. Prem Narain V/s. Mahabir Jain – 2018(7) ADJ 691, 2018(29) ALR 112, 2018 141 RD47, wherein, head note reads as under:

Limitation – Cancellation sale deed

- Determination of period – Appeal filed against dismissal of suit for cancellation sale deed – whether point of limitation for decree of cancellation of transfer deed, should commence from date of knowledge, starting from date of registration of document or from date of execution of document – Held, act of registration was not a mere instance of collecting revenue by State as registration was not a mere instance of collecting revenue by State as registration fee and providing authenticity to document – It was by act of registration title, of property passes to transferor from date of execution of deed of transfer – Suit could not have been instituted by Appellant without producing in evidence registered sale deed – Therefore for purpose of instituting suit and for starting of limitation for

challenging sale deed would be knowledge of fact of registration of document which created entitlement of Appellant to institute suit – Prior to registration of document, Appellant was legally disentitled to challenge sale deed before competent Civil Court – Entitlement of Appellant to institute suit arose only when he got knowledge of registration of sale deed – Suit was not barred by time- Appeal allowed. [29], [31], [33], [34].”

sufficient non judicial stamp shall be required. Section 54 of the Transfer of Property Act, reads as under: 54. “Sale” defined.—‘‘Sale” is a transfer of ownership in exchange for a price paid or promised or part-paid and part-promised. Sale how made.— 3Such transfer, in the case of tangible immoveable property of the value of one hundred rupees and upwards, or in the case of a reversion or other intangible thing, can be made only by a registered instrument. 1In the case of tangible immoveable property of a value less than one hundred rupees, such transfer may be made either by a registered instrument or by delivery of the property. Delivery of tangible immoveable property takes place when the seller places the buyer, or such person as he directs, in possession of the property. Contract for sale.—A contract for the sale of immoveable property is a contract that a sale of such property shall take place on terms settled between the parties. It does not, of itself, create any interest in or charge on such property.

followed by consideration is the important phase in the transfer of immoveable property by way of sale. However, registration of the sale deed is essential under Section 17 of the Registration Act. As per the law

recognized, valid transfer is only upon registration of the executed sale deed by the concerned authorities. As I have stated in the earlier discussion, it is not a declaration of title which is sought by the plaintiff, but it is for the relief of declaration that the sale deed Ex.P1 was executed by 1st defendant.

the case, appears to be aware of the fact that it is not a total and complete sale deed that is presented by it as Ex.P1. It is in the said direction, it presented the document for compulsory registration before the Sub- Registrar under Section 34 of the Act. However, that came to be rejected and appeal was preferred before the Registrar in R.A.No.3/1992-93 on 20-8-1992.

appear, the Registrar, in cases where the delay in appearing does not exceed four months may direct that on payment of a fine not exceeding ten times the amount of the proper registration fee in addition to the fine, if any payable under Section 25, the document may be registered.

circumstances to believe that the executants has disputed the execution of the sale deed, the registering authority cannot assume jurisdiction to decide the validity. A fact will be taken as proved when it is admitted by the parties under Section 58 of the Evidence Act or be held as proved by the Court. Thus, execution admitted by vendor of the sale deed is equal to adjudication of the court of competent jurisdiction that the document has been duly executed after the trial whether the Court holds that the objections or denial by the vendor are not tenable. It is in this connection, a direction that was issued by the Hon’ble Apex Court prevailed on the trial judge and the appellate judge as well, wherein, it is incumbent upon them to hold enquiry on the validity of the execution of the sale deed and close the matter.

the contents of the sale deed and agreeing the contents of it.

compensation is the only alternative available in place of schedule property.

registered. The very question is, whether such document creates rights over the schedule property and declaration sought is in respect of documents stated to be executed.

are the sale agreements that preceded the execution of the sale. P17 is dated 30.7.1991 and P18 dated 21.9.1991. The second agreement was regarding the extension of the extent to include additional 30 guntas to 223 acres of land.

100

same subject matter. No doubt dismissal for non prosecution if recalled cannot be considered as governed by Doctrine of res-judicata in strict sense, but the consideration is that 1st defendant Mme Devika Rani has not challenged the said order, not filed any other suit and as it has time limit because in the said suit it is contended by her, fraud and undue influence exercised on her in order to get sale deed. In other words, the plea taken by the 1st defendant in the present suit through her written statement substantially is equal to plaint filed by her in O.S.No.32/1994.

101

representation of facts, fraud, undue influence or coercion has a strong responsibility of discharging the burden, existence of the circumstances with proof and such plaint shall be strictly with detailed particulars as envisaged in Order VI Rule 4 of Code of Civil Procedure which is as under:

“ORDER VI RULE 4. Particulars to be given where necessary. - In all cases in which the party pleading relies on any misrepresentation, fraud, breach of trust, wilful default, or undue influence, and in all other cases in which particulars may be necessary beyond such as are exemplified in the forms aforesaid, particulars (with dates and items if necessary) shall be stated in the pleading.”

102

103

when the Sub-Registrar believe the presence of vendor has to be dispensed in his office and the prescribed procedure is available so that he can go to place of the vendor regarding completing the formality of the registration. In this connection, it is necessary to mention proving of execution of document in either way is taken, formality of registration when the execution is duly admitted or when it is denied by the vendor regarding the execution of such sale deed and the competent court of law has to decide that the said document is proved to be executed. From the oral and documentary evidence on record, it is clear point of law that a valid execution is the legal right on the purchaser and he is entitled for benefits which are up to the execution and for further formality matter goes to the registration authority for registration of the said document. Thus, in this connection I do not have any doubt as there is no iota of evidence to hold

104

against the execution of sale deed and the plaintiff in all circumstances is entitled for the prayer sought by it and requires to be confirmed.

105

The execution of Will is not in question. On the other hand, competency to execute Will was not there because 1st defendant has not executed the Will. Thus she can inherit under testamentary or intestate succession provided 1st defendant had estate. As no one can convey what better than she or he has under the maxim Nemo Dat Quad non and equally no one can inherit what the propositus never possessed. Under the circumstances, the learned first appellate judge in R.A.33/2002 was right in allowing the appeal preferred by the plaintiff as the trial judge committed blatant error and judgment of the trial court is perverse, arbitrary and liable to be set aside and was rightly done so by the first appellate judge by allowing the appeal and setting aside the judgment of the trial court consequently decreeing the suit.

106

107

Substantial questions of law are answered accordingly.

Regular Second Appeal is dismissed with costs throughout.

Sd/- JUDGE

tsn*/akv